O R D E R

% 08.04.2013 While appearing in Diplomat of National Board (DNB) Final Examination held in June, 2009, the respondent no.1 was, on 14.6.2009 found in possession of a mobile phone. The Ethics Committee of the Board after giving an opportunity of hearing to the respondent, decided, vide order dated 30.3.2010, to debar him for six attempts and cancelled the attempt made by him in June, 2009. The respondent no.1 filed W.P(C) No.803/2001 before this Court challenging the order passed by the appellant debarring him for three years (six attempts) including the attempt of June, 2009, on the ground that he was found using unfair means in the said examination. In the meanwhile, the respondent no.1 had appeared for the subsequent examination In December, 2009, on the strength of the provisional permission granted to him by the appellant. That attempt was also cancelled by the appellant.

2. W.P(C) 803/2011 was then filed by the respondent no.1 challenging the aforesaid action of the appellant. The writ petition came to be disposed of vide order dated 4.2.2011 directing the respondent no.1 to first exhaust the remedy of appeal available to him. On such an appeal being filed by the respondent, an independent Expert Committee was constituted by the Appellate Authority. Accepting the recommendations made by the Expert Committee, the Appellate Authority reduced the penalty from six attempts to four attempts and allowed respondent no.1 to appear in June, 2011 onward examination. W.P(C) 3285/2011 was then filed by the respondent no.1 challenging the aforesaid decision of the Appellate Authority. Vide order dated 31.10.2012, the learned Single Judge of this Court quashed the order passed by the Appellate Authority on 25.4.2011. Being aggrieved from the aforesaid order, the appellant is before us by way of this appeal.

3. During the course of arguments, we specifically asked the learned senior counsel for the appellant as to whether instructions were issued to the candidates prohibiting them from carrying mobile phones inside the examination hall or not. In response thereto, the learned senior counsel for the appellant referred to the following instructions contained in the Information Bulletin and application form for DNB-Final Examination:

“Unfair means includes canvassing for support of a candidate with examiners of DNB Exam/NBE office/any other functionary/ use of electronic gadgets as Mobile Phone during exam/ impersonation/ use of study aids as books/ notes etc during exam/ influencing any functionary of exam system/ any other act intended to breach the sanctity of examination process.”

A perusal of the above extracted clause contained in the information bulletin would show that it does not prohibit the candidates from carrying mobile phone inside the examination hall nor does it say that mere carrying a mobile phone in the examination hall, without actually using it, would amount to an unfair practice or use of unfair means. What the aforesaid clause prohibits is the „use‟ of any electronic gadget such as mobile phone during examination and not an inadvertent act of taking such a phone inside the examination hall even if no attempt is made to make any use of the mobile phone inside the examination hall. Therefore, it cannot be said that the respondent had indulged into an unfair practice or had attempted unfair means merely by carrying the mobile phone inside the examination hall.

4. The case of the respondent no.1 is that carrying the mobile phone inside the examination hall was an inadvertent act which was also be evident from the fact that he did not make an attempt to put the phone on silent mode. This is also an admitted position that no attempt was made by the respondent to use the mobile phone found in his possession, during the examination. The mobile phone was seized by the Invigilator from the respondent no.1 and, therefore, sim card of the phone was available with the appellant. No attempt was made by the appellant to find ou